George v Secretary of State for the Environment and another

Application to quash compulsory purchase order–Applicant joint owner of house with husband–Authority unaware of her joint interest and notices not served on her–Question whether she was aware of proceedings, but decided not to object–Affidavit evidence–Cross-examination allowed on affidavits de bene esse–Cross-examination of deponents in such proceedings, as in prerogative order proceedings, altogether exceptional–Evidence obtained by cross-examination not admitted–Whether applicant substantially prejudiced by failure to serve her–Although affidavit evidence not altogether satisfactory, applicant entitled to have order quashed This was an application by Mrs Victoria Oluremi George to quash a compulsory purchase order for the acquisition of a house at 15 Brookhill Road, London SE18, in which she had a joint interest with her husband. The compulsory purchase order was made by the London Borough of Greenwich. The application was made on the ground that the applicant had not been served with the statutory notice of the order and had as a result been substantially prejudiced. The facts are fully set out in the judgment. A Crawley (instructed by Kenku & Co) appeared on behalf of the applicant; Harry Woolf (instructed by the Treasury Solicitor) appeared as amicus curiae; D Keane (instructed by the Solicitor to the London Borough of Greenwich) represented the borough. Giving judgment SIR DOUGLAS FRANK said: This is an application under paragraph 15 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946 to quash a compulsory purchase order for the purchase of 15 Brookhill Road, SE18 (which I shall refer to as ‘the house’) made by the second respondents (whom I shall refer to as ‘the council’). The applicant, Mrs George, and her husband jointly bought the house in November 1967 with a mortgage by the council, and thereupon became and are now the registered proprietors of the freehold interest in the house. In November 1974 the council resolved to acquire the house compulsorily and thereupon the council served a requisition for information as to the ownership of the house upon Mr George and Barclays Bank, the second mortgagees, but in neither of the replies was the interest of Mrs George disclosed. The compulsory purchase order was made on May 8 1975, advertised in a local newspaper, and served on Mr George but not the applicant. The order and the advertisement stated that any objection to the order had to be made to the first respondent before June 5 1975 and Mr George made an objection by a letter dated May 28. The first respondent caused a public inquiry to be held by one of his inspectors at which Mr George appeared by Mr Crawley of counsel, who appears for the applicant in this application. The inquiry was held on August 27 1975 and April 6 1976 and following it the inspector recommended that the order be confirmed and it was in fact confirmed by the first respondent on May 19 1977. On July 13 1977 the applicant issued her notice of motion asking for the order to be quashed on the ground that the council did not comply with the requirements of the Act of 1946 and consequent thereupon her interest had been substantially prejudiced. The council admit that the order was not served on Mrs George but say that for the order to be quashed she must have suffered substantial prejudice by the failure to serve. They say, however, that she was not prejudiced because she knew of the making of the order and made a conscious decision not to object to it because in the event of the order being confirmed she would then have a better chance of having it quashed on technical grounds. In her first affidavit sworn on July 12 1977 the applicant, having recited the facts relating to the purchase of the property, said that she and her husband lived in the house for about three years from November 1967 but later moved to another address. During the past two years she had been living at yet another address at Welling, Kent. She went on to say that ‘last month it came to my notice by reading a local paper that a compulsory purchase order had been made and confirmed in respect of our property. This surprised me because at no time was I served with any notice in relation to the same.’  In an affidavit sworn on March 3 1978 she said that she had not read the newspapers publicising the making of the order, that in May 1975 she was in Oxford training as a nurse and only came to London once a month. This case first came before me on March 15 1978 on an application by Mr Keane for the council to cross-examine the applicant. It could only be done then as the applicant was leaving for her country of origin, namely Nigeria, that night and was not expected to return for some weeks. Accordingly, by agreement, I allowed the cross-examination de bene esse, leaving argument on the question whether cross-examination should be allowed to be deferred. It seemed to me that this case would involve the consideration of questions of wide implication and so, before adjourning the case for a date to be fixed for the substantive hearing, I requested that the first respondent, who had decided to take no part in the proceedings, should nevertheless appear by Treasury Counsel. In the event Mr Woolf appeared as amicus curiae to assist me generally with the questions of law involved but not to make any submissions with regard to the facts of this case. I may say here that in the event he has been of considerable help and I am grateful for it. The first question I have to consider is whether to admit the evidence given in cross-examination by the applicant. No case concerning a compulsory purchase order or an application under comparable statutes such as the Town and Country Planning Acts was cited. In fact the only case cited covering the power to allow cross-examination on an appeal to the High Court was R v Stokesley, Yorkshire Justices, ex parte Bartram [1956] 1 WLR 254, and although it concerned a matter remote from compulsory purchase it was thought by all counsel to be relevant. In that case Lord Goddard CJ remarked: 9 This is probably the first case in recent history in which application has been made in Crown proceedings for leave to cross-examine on affidavits. Leave has never been given, or at least for a great number of years, and he cited Lord Hewart CJ in R v Kent Justices, ex parte Smith [1928] WN 137, that an order for the cross-examination of a deponent was not likely to be made except in very special circumstances. Although the Divisional Court allowed cross-examination in the Stokesley case, they did so only because it was ‘a very remarkable and a very exceptional case,’ and the court were at pains to emphasise that fact and that it should not be taken as an easy precedent. Mr Woolf said that the instant case is closely allied to prerogative proceedings and that but for the exhaustive statutory remedy, the prerogative procedure would run side by side and accordingly he submitted that there was no case for distinguishing Stokesley. He also drew attention to the approach of the Rules of the Supreme Court: to Order 94 Rule 3 (1) in which it is provided that the proceedings ‘shall be by affidavit’ and to Order 38 Rule 2(3), the second half of which is applicable here. He also said that there was a good reason for curtailing cross-examination, namely it is intended that there shall not be an appeal on matters of fact. Mr Keane submitted that there are issues of fact in dispute, namely, the state of knowledge and the motivation of the applicant and that it was proper that the council should have an opportunity of testing the applicant’s evidence, particularly as these were issues of fact outside the record. Alternatively, he submitted that this is an exceptional case, the facts being peculiarly within the knowledge of the applicant and there being inconsistencies in her affidavits. It is, I should say in passing, questionable whether any fresh evidence should be admitted even by affidavit having regard to Ostreicher v The Secretary of State for the Environment [1978] 1 WLR 810. But no question was taken on the admissibility of the affidavit evidence in the case. Indeed the affidavits were made wisely by the applicant. But I turn to the question of cross-examination. I have no doubt that leave to cross-examine should be given in only the most compelling and exceptional cases, for were it to be otherwise the door would be open to cross-examination in many of the large number of applications to quash ministerial orders. The question then is, is this such an exceptional case?  It is true that it is rare for compulsory purchase cases to come before the court on the ground that the order had not been served. Failure to serve is not the issue here. What is in issue is the question of substantial prejudice and that arises time and time again in applications under section 245 of the Town and Country Planning Act of 1971 and also, but less frequently, under the statutory provisions applicable to the instant case. I observe in passing that in the recent case of East Hampshire District Council v Secretary of State for the Environment, as yet unreported [reported in full at p 43 of this issue], Slynn J permitted affidavit evidence to be filed to show that a particular matter of real importance had been left out of an inspector’s report. That was the first and, I believe, only time that such evidence has been permitted and it seems to me very unlikely that the court would have taken the further step of allowing cross-examination of that evidence. In no case within my recollection has the court ever permitted an applicant to be cross-examined as to his state of knowledge or his motivation or, indeed, on any other matter. I do not think it would be right to set a precedent in this case, partly for the reasons inherent in what I have just said and also because the council are at least technically responsible for that which gives rise to these proceedings, namely, the admitted failure to serve the order and, further, because even if they fail in these proceedings they have an immediate remedy, namely, to serve a fresh order. It seems to me that cross-examination should be permitted only to determine a clear-cut issue of fact on a procedural matter, as was the case in Stokesley. For all these reasons I conclude that it would not be proper in this case to admit the evidence given in cross-examination. I now turn to the substantive part of the case which gives rise to these two questions: (1)  Is it necessary for the applicant to show that she has been substantially prejudiced? and (2)  If so, whether she has so shown. Paragraph 15(1)(b) of Schedule 1 to the Act of 1946 provides that the court: if satisfied that the authorisation granted by the compulsory purchase order is not empowered to be granted as aforesaid, or that the interests of the applicant have been substantially prejudiced by any requirement of this Schedule or of any regulation made thereunder not having been complied with, may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant. It seemed to be common ground that it is the second limb of this paragraph which has to be considered and in particular whether the interests of Mrs George were substantially prejudiced by the failure to serve the order. The particular requirement not complied with in this case is that under paragraph 3(1)(b) of the Schedule, which provides that Before submitting the order to the confirming authority the acquiring authority shall . . . serve on every owner . . . of any land comprised in the order a notice in the prescribed form stating the effect of the order and that it is about to be submitted for confirmation, and specifying the time (not being less than 21 days from the service of the notice) within which and the manner in which objections can be made. As Mr Woolf said, the purpose of that requirement is to enable a person to be heard in opposition to the confirmation of the order and so the requirement is closely related to the rules of natural justice. Mr Woolf also said that it is fundamental that an owner should know what is taking place and what his rights are but that it does not follow that any particular procedure has to be followed provided that there is compliance with the rule audi alteram partem. Thus it is impossible for a person to go to the courts and say that he has been substantially prejudiced if he knew the facts and made a conscious decision not to avail himself of the right given by the legislation. Hence the proper approach since the case of Fairmount Investments Ltd v The Secretary of State for the Environment and Another [1976] 1 WLR 1255 is to see whether an owner has had a ‘fair crack of the whip,’ and that is not dependent on whether the notice he received was formal or informal. I adopt Mr Woolf’s submissions and it follows that I must consider whether Mrs George has suffered substantial prejudice. However, in considering that question I bear in mind what was said by Browne J (as he then was) in Hibernian Property Co Ltd v Secretary of State for the Environment and Another (1973) 27 P&CR 197 at p 217: In general, it seems to me that an applicant must prove that his interests have in fact been substantially prejudiced by the failure to comply with the particular requirement in question: see Gordondale Investments Limited v Secretary of State for the Environment and Another, especially per Lord Denning MR. This of course does not mean that the applicant must prove that the decision would have been different if the requirement had been complied with, which would usually be quite impossible. In my view, the loss of a chance of being better off in relation to the proposed order would usually be enough to constitute substantial prejudice. For example, in Wilson v Secretary of State for the Environment I held that the interests of the applicants had been substantially prejudiced by a failure to give proper notice of a proposal to give a certificate relating to an exchange of common land because they had been deprived of the opportunity of making representations or objections and of the chance that the Secretary of State would order a public inquiry (which was discretionary and not obligatory under the legislation applicable to that case). Mr Keane submitted that the test whether a person had suffered substantial prejudice is objective and the burden rests on the applicant, and he referred to the Hibernian case and Grimley v Minister of Housing and Local Government [1971] 2 QB 96. I think in an ordinary case where it was admitted that the order had not been served that would amount to res ipsa loquitur and the burden would then pass to the acquiring authority. In10 this case, however, there is other evidence in the applicant’s affidavits on which Mr Keane relies and I shall now examine them to see whether they show, as he contended, that the applicant knew of the facts and made a conscious decision not to avail herself of the right to object. In an affidavit dated July 12 1977 the applicant said that during the past two years she had been living at 256 Bellegrove Road, Welling, Kent. But in a later affidavit she said that was wrong. She said that her husband had been living at that address for that period and that it was the address to which her letters were sent but that she had been separated informally from her husband until she rejoined him there in January 1977. She also said that from January 1973 until September 1975 she was training as a nurse at Oxford, returning to London only on occasional days off duty about once a month. She said that prior to November 1974 she went to her husband on her days off. He was then living in Innes Road, Greenwich. In November 1974, however, they quarrelled and thereafter her London base was that of a friend at Islington at Monnery Road. Her base continued to be at Monnery Road until January 1977 when she and her husband became reconciled and since then have been living together. She said that on a day in May 1975 when she visited her husband on an off-duty day he told her that ‘the council wrote to say that a compulsory purchase order had been made in respect of 15 Brookhill Road, SE18, but assured me that he was going to the council to sort things out.’  She said that in August 1975, during which month the council’s principal assistant solicitor had said that notices relating to the public inquiry were posted on lamp posts in Brookhill Road, she was in Oxford and did not have an opportunity of reading them. She also said that had she been served with a notice: ‘I would not have relied on my husband’s assurance that everything was all right. I would have sought legal advice. I would also have tried to raise a loan to carry out the work to be done.’  She said that she and her husband had recently moved into the house and had applied for possession orders against the tenants who remain, on the ground that they need the accommodation for themselves and their three children. They are anxious to have the children living with them again as they have, for several years, been staying with friends in Liverpool. The applicant’s evidence is not altogether satisfactory. The fact that she changed it to the effect that she was not living with her husband on the days when the public inquiry was held gives ground for suspicion, but her statement that she was living elsewhere must be accepted. Thus, the only evidence that the applicant could have known about the compulsory purchase order was that her husband told her of it. Cogent as that evidence is, it seems to me that it would be wrong to take that part of the statement alone; that is to say, if she accepted his statement that a compulsory purchase order had been made then equally she would accept that he would be going to get it ‘sorted out.’  I have reached the conclusion that this is not sufficient evidence to establish Mr Keane’s proposition that the applicant made a conscious decision not to object to the order and I think that the failure to serve the order deprived the applicant of the chance of objecting to it. Hence, although this is a borderline case, I have come to the conclusion that the applicant is entitled to have the order quashed. The order was quashed with costs against the council.