Gosling v Secretary of State for the Environment and another

Compulsory purchase of clearance area plus added lands–Confusion in both inspector’s report and Secretary of State’s decision letter as to justification for incorporating added lands in order–Extrinsic evidence not admissible to construe decision letter–Letter cannot be amended under ‘slip rule’–Objector entitled to have order quashed in so far as it affected his property This was a motion by Mr Eric George Gosling, a solicitor practising at 248 Walworth Road, London SE17, for an order quashing the London Borough of Southwark (Goodwin Buildings) No 1 Compulsory Purchase Order 1971, made by the second respondents, the London Borough of Southwark, in 1971 and confirmed by the first respondent, the Secretary of State for the Environment, on August 16 1972. The plaintiff sought to quash the order only in so far as it affected Nos 133 and 135 Southwark Bridge Road, London SE1. Mr G Dobry QC and Mr A D Dinkin (instructed by Lewis, Barnes, Wheeler & Co) appeared for the applicant, and Mr H K Woolf (instructed by the Treasury Solicitor) represented the first respondent. The second respondents took no part in the appeal. Giving judgment, ACKNER J said: Mr Gosling is a solicitor of the Supreme Court and practises under the name of Lewis, Barnes, Wheeler & Co and Gosling & Co at 248 Walworth Road. He is the owner of two freehold properties, 133 and 135 Southwark Bridge Road, SE1, which with other parcels of land are the subject of a compulsory purchase order made by the Southwark Corporation on August 3 1971 and confirmed by the Secretary of State for the Environment on August 16 1972. Mr Gosling wishes to modernise 133 and 135 Southwark Bridge Road for use as offices, and subject to acceptable terms, he is prepared to include 131 and 137 in a modernisation scheme. He moves pursuant to the fourth schedule to the Housing Act 1957 to quash the order. His notice of motion was amended at the outset of this hearing and reads in its amended form as follows: ‘The grounds of the application are: (1) The compulsory purchase order was not within the powers of the Housing Act 1957 in that the first respondent’–that is the Secretary of State–failed to take relevant considerations into account, or alternatively based his decision on legally irrelevant considerations. (2) There was no evidence before the first respondent on which he could decide as he did. (3) The first respondent’s decision is not within the powers of the said Act in that he applied the wrong legal test and dealt with the wrong questions, that is to say whether there would be achieved a cleared area of a convenient shape.’  Mr Gosling naturally relies upon the case of Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, and in particular on the judgment of Lord Denning MR, where he stated: The court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a conclusion to which, on the evidence, he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law. In relation to the facts, the position is as follows. The order related to the clearance of an area of about 0.3 of an acre, including half the adjoining roads, containing a five-storey tenement block known as Goodwin Buildings comprising 55 dwellings. Included also in the order were ‘added lands’ having a gross area of about 0.2 of an acre, comprising a three-storey block of four properties, that is 131 to 137 Southwark Bridge Road, containing two shops and living accommodation over, a vacant dwelling together with a single-storey warehouse and an office, and half the adjoining public streets. The land was required as a public open space. The material subsection on which all attention has been focused in the course of this case is the well-known section 43 (2) of the Housing Act 1957: Where the local authority determine to purchase any land comprised in the area declared by them to be a clearance area, they may purchase also any land which is surrounded by the clearance area and the acquisition of which is reasonably necessary for the purpose of securing a cleared area of convenient shape and dimensions, and any adjoining land the acquisition of which is reasonably necessary for the satisfactory development or use of the cleared area. Thus the added land can fall into one of two categories. It can be land which is surrounded by the clearance area, in which case the acquisition must be reasonably necessary for the purpose of securing a cleared area of convenient shape and dimension, or secondly it can be adjoining land, in which case its acquisition must be reasonably necessary for the satisfactory development or use of the cleared area. It is incontestable that the added land in this case was not surrounded by the clearance area, as is clearly shown by two maps, maps B and K. The land is a triangular-shaped island site, and the added land forms a corner of the triangle. The added land is therefore adjoining land in the second of the two categories, the second limb of the subsection, and the particular test which is appropriate is to be found in the words ‘the acquisition of which is reasonably necessary for the satisfactory development or use of the cleared area.’ I now turn to the relevant parts of the decision letter of the Minister, which is dated August 16 1972 and is signed on his behalf by Mr K Stott, senior executive officer. The material paragraphs are paragraphs 3 and 4. Paragraph 3 reads as follows: The only objection to the order was on the grounds that the acquisition of some of the added lands was neither essential nor reasonably necessary for the satisfactory development or use of the cleared area, and that their exclusion would not prevent the use of the cleared area either for open space purposes or for some other form of development. Four other representations were made at the inquiry supporting the council’s plan to provide the public open space. That paragraph is in no way attacked, and there is no inaccuracy or ambiguity which is to be found in it. It is the next paragraph, paragraph 4, on which most attention has been focused. That reads as follows: The inspector found that all the property in the clearance area was correctly represented as unfit and concluded that the most satisfactory method of dealing with the conditions in the clearance area was the demolition of all the buildings therein. So far, no criticism. He also concluded that the acquisition of the added lands was reasonably necessary for the purpose of securing a cleared area of convenient shape and dimensions, or for the satisfactory development or use of the cleared area. The inspector accordingly recommended that the order be confirmed without modification. If the inspector found, as the Secretary of State stated, that the acquisition of the added land was reasonably necessary for the purpose of securing a cleared area of convenient shape and dimensions, and that this was in itself the justification, he would have been applying the wrong limb of the subsection, because, as I have previously pointed out, that limb only applies if the added land is surrounded by the clearance area, and, as I have previously stated, this land was not. On the other hand, as I ventured to suggest in the unreported case of Lockett v Secretary of State for the Environment, decided in May 1973, the terms of section 43 (2) are very wide. Accordingly the shape and dimensions of the cleared land could well in a given case be so inimical to its proposed development that the acquisition of some adjoining land could properly be said to be reasonably necessary for the satisfactory development of the cleared area; that is the second limb of the subsection. An example was provided in the course of argument where the planning authority sought compulsorily to acquire land for use as a football pitch and the cleared land was just insufficient to provide the area required for such an activity. The adjoining land was therefore necessary in order to add to the dimensions and/or improve its shape, so that its acquisition could properly be said to be reasonably necessary for the satisfactory development or use of the cleared site. On the face of the Secretary of State’s letter, the inspector has posed to himself an irrelevant question, namely whether the added lands are reasonably necessary for the purposes of securing a cleared area of convenient shape and dimensions. The question upon which he should have concentrated was whether the acquisition of the added land, being adjoining land, was reasonably necessary for the satisfactory development or use of the cleared area. The mere ipse dixit that it made the shape of the cleared land more convenient would not of itself provide the reasonable necessity which had to be established (see Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433). The Secretary of State’s letter therefore discloses this problem. Paragraph 5 reads as follows: ‘The arguments put forward by the objector and the council have been considered. The inspector’s findings, conclusions and recommendation have been accepted, and the Secretary of State has therefore decided to confirm the order without modification. The endorsed order and map are being returned under separate cover for deposit22 in the council’s offices.’  Thus the Secretary of State shared–if the inspector was in fact muddled–the same muddled appreciation of the operation of the subsection, and thus erred in point of law. The fact that the conclusion was expressed in the alternative, the one limb relevant and the other irrelevant, does not to my mind save the position. It seems to me to be a proper reading of paragraph 4 that the inspector concluded (which conclusions were adopted in paragraph 5 by the Secretary of State) that the mere fact that the added lands provided a convenient shape and dimensions was in itself the answer to the test posed by both limbs of the subsection. Mr Woolf, to surmount this difficult position, has first invited my attention to the inspector’s report in order to establish that the inspector’s conclusions have not been properly recorded in the Secretary of State’s letter, and that the inspector in fact properly discharged his functions under the Act. He first drew attention to paragraph 4 of the inspector’s report dated April 11 1972, which reads as follows: The council has declared that the dwellings within the clearance area are unfit for human habitation and that the best method of dealing with the conditions is the demolition of the buildings within the clearance area. It has also declared that the acquisition of the added lands is reasonably necessary for the satisfactory development or use of the cleared area. There, says Mr Woolf, and in my judgment rightly, is a clear indication that at least the council knew that it was the second limb of the subsection which was relevant. Counsel then points to the next paragraph, which reads as follows: One objection was received in respect of one property, 133 Southwark Bridge Road, reference number 3, and one late objection was lodged by the same objector in respect of the adjoining property, 135 Southwark Bridge Road, reference number 4. The objections were generally on the grounds that it was not reasonably necessary to acquire numbers 131 to 137 Southwark Bridge Road to enable the satisfactory development of the cleared area to be carried out. There, says Mr Woolf, and again rightly, in my judgment, is a clear indication that the objectors knew that it was the second limb of the subsection which was appropriate. Counsel then refers to paragraph 20, which deals with the general case of the council in support of the compulsory purchase order, and reads as follows: The acquisition of the adjoining properties, numbers 131 to 137 Southwark Bridge Road and 1 and 2 Quilp Street, is considered reasonably necessary for the satisfactory use or development of the cleared areas. Here, says Mr Woolf, is further confirmation that the council had got it right. Then the next paragraph, if more confirmation is required, provides that support: There is a serious deficiency of open space in this part of the borough, and to alleviate it it is intended to add the order lands and other land in the vicinity to the adjoining area already defined for public open space purposes in the initial development plan. The order lands form an island site between two busy roads, and it is considered essential to acquire all the properties within the order, as it would not be practical to develop or lay out the area as part of the open space without including the added lands. Then the report deals with the objections. There were not objections emanating from the owners of all the added lands. In paragraph 24 and subsequent paragraphs the case for the council in answer to the specific objections is set out. It reads as follows: No layout of the proposed park has been prepared, as that would be carried out by a consultant landscape architect, but it would be difficult to design a satisfactory layout without including the sites of numbers 131 to 137 Southwark Bridge Road. It would be difficult to develop the site of Goodwin Buildings for open space purposes if numbers 131 to 137 Southwark Bridge Road were to be retained, as there would be problems in providing rear access to those premises without retaining Quilp Street. This proposition, namely the difficulty as there described, does not feature in the many facts found by the inspector. Paragraph 25 makes a further point in these terms: Although the frontage of the local park to the major roads would not be significantly reduced by the retention of numbers 131 to 137 Southwark Bridge Road, the view of the backs of the premises from the park would not be very presentable. This criticism, another justification for the inclusion of the adjoining land, is again not reflected by the inspector in his findings. Then comes paragraph 26, which deals for the first time basically with shape, and there the council states that: The exclusion of numbers 131 to 137 Southwark Bridge Road would result in an open space of an awkward shape even after the rest of the open space land had been acquired, and to have those properties intruding into it would be undesirable. The council are not using the words in the first limb of the subsection, which are ‘convenient shape.’  They are not saying the shape would be inconvenient or the dimensions would be inconvenient. They are saying it would be awkward, and it is quite clear that they are directing their minds to the second limb of the subsection. Paragraph 28 of the report sets out the inspector’s opinion on Mr Gosling’s objections. I think I ought to set out the whole paragraph, although the first sentence is perhaps a preface: These added lands, together with reference number 6, adjoin the southwestern side of the clearance area, all of which together form a triangular island site bounded on two sides by principal traffic routes and on the other side by Quilp Street. While the fabric of the buildings would appear to be capable of repair and the interiors restored, it seems to me that the acquisition of reference numbers 2 to 5 is reasonably necessary under the terms of section 43 of the Housing Act 1957. It would not be possible in my view to carry out the development of the cleared area without including the added lands, as they enable a cleared area of a convenient shape to be achieved. What is particularly to be observed about this paragraph is that before giving, so to speak, his justification, the inspector refers in terms to the relevant section, and he then goes on to give his justification for saying why the acquisition is reasonably necessary having regard to that section. Mr Woolf accepts that the inspector pitches the matter higher than it was pitched by the council by saying that it would not be ‘possible’ to carry out the development, when of course the council were conceding, as one would have thought was obvious, that it could be carried out but that difficulties would be encountered. Having pitched it higher, one then finds that he provides this as the answer to why it is not possible to carry out the development–the cleared area without including the added lands would not enable a cleared area of convenient shape; and that is an unexpected and surprising answer, because it does not in fact explain the alleged impossibility. It asserts merely inconvenience, and it uses as the basis for the justification the very words to be found in the first limb, ‘convenient shape.’  It seems to my mind clear that the inspector, in not adopting the language of the council, which was ‘awkward shape,’ and in not referring to the various difficulties which they raised, was satisfied that all he had to do was to find that the cleared area without the added land did not provide a convenient shape to justify his saying that it was reasonably necessary to acquire the added lands. In other words, he was applying his mind to the first limb and answering the question by saying that it was reasonably necessary to acquire the added lands in order to secure a cleared area of convenient shape. Mr Woolf invited my attention to paragraph 70, which is the conclusion of the inspector in regard to the compulsory purchase order in its generality, and is not designed to be a decision related to the specific objections of Mr Gosling, as was paragraph 38. Paragraph 70 reads: I consider that the acquisition of the added lands is reasonably necessary under the terms of section 43(2) of the Housing Act 195723 in order to give a cleared area of reasonable shape for the satisfactory use or development of the cleared area. I do not consider I can use that paragraph in order to construe paragraph 38, which is clear in itself. I accept, of course, that I should not approach paragraph 38 as if it were a statutory instrument or some conveyancing document that has to be seen through the expert eyes of conveyancing counsel. However, paragraph 70 is, as Mr Woolf accepts, expressed in language which involves a different emphasis, and it is not dealing with the specific point, namely the objections of Mr Gosling in relation to the adjoining land which is the subject-matter of this application. If I am wrong in the view which I have just expressed, then I must proceed to the next stage, which presupposes that the inspector did properly carry out his functions and did in fact reach the conclusion that the acquisition of the added land was reasonably necessary applying the second limb test, namely that it was reasonably necessary for the satisfactory development of the cleared site. I turn then to consider the Secretary of State’s letter, because it is his letter which is being attacked, and it is his letter which clearly records the muddled and misapprehended position attributed to the inspector. Mr Woolf submitted that he was entitled to provide evidence that paragraph 4 of the Secretary of State’s letter did not properly state what it had been intended to say. I must make it perfectly clear that Mr Woolf did not seek to suggest that there was any intrinsic material within the letter to suggest that it did not mean what it stated. For this submission he was proceeding on the basis that the letter itself was clear, but that there was extrinsic material to establish that the Secretary of State had by mistake wrongly expressed himself. Mr Dobry, on behalf of Mr Gosling, contended that I had no warrant to allow any extrinsic evidence, that the Minister’s decision was to be found in his letter, and that although I was of course entitled (and indeed obliged) to construe his letter, I was not entitled to go outside it, least of all to admit evidence from his department to say that he did not mean to say what he did in fact say. No authority directly on the point has been found, but Mr Woolf in his most careful and helpful submissions took me to the Annual Practice, order 20, rule 11, which deals with the amendment of judgments and orders and provides for clerical mistakes in judgments or orders to be corrected by the court. Counsel also referred to order 20, rule 8, which reads as follows: For the purposes of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. It seems clear from the note to that order and rule to be found at page 340 of the current Annual Practice that the words ‘document in the proceedings’ have as one would expect, a very restricted meaning. It does not and cannot refer to every document which features in the proceedings. It would not, for example, entitle the court, unless permitted under some other rule of the court or some other rule of law, to amend what purported to be a contractual document or to change the date of a notice to quit on which, by some typing error, the wrong day of the week had been inserted. In my judgment the rules referred to do not touch this particular problem and provide me with no authority to amend the Minister’s letter. I did however admit de bene esse an affidavit by Mr Stott, the writer of the letter, in case on this point too I should be wrong, so as to enable the matter to be appropriately rectified in the Court of Appeal should this case go further. Mr Stott is a senior executive officer in the Department of the Environment, and it was he who, as I have already stated, signed the letter. The letter was not prepared in fact by him, but by someone junior to him. The procedure apparently is that a standard form of letter is used incorporating certain standard paragraphs, and one of the standard paragraphs here was paragraph 4, which reads in these terms: The inspector found that [all] the properties in the clearance area were correctly represented as unfit houses [except . . .]. He concluded that the most satisfactory method of dealing with the conditions in the clearance area [as modified] was the demolition of all buildings therein. The inspector also concluded, having regard to the multiplicity of ownership, that the council were justified in acquiring the unfit houses to secure satisfactory clearance for redevelopment, and that the acquisition of the added lands including reference numbers . . . was reasonably necessary for the purpose of securing a cleared area of convenient shape and dimensions or for the satisfactory development or use of the cleared area. The inspector accordingly recommended that the order be confirmed subject to the modification(s) that . . . Significantly, there is no asterisk or side note in this paragraph which says ‘delete as appropriate one of the two alternatives,’ namely ‘necessary for the purpose of securing a cleared area of convenient shape and dimensions’ and ‘for the satisfactory development or use of the cleared area.’  Mr Stott said that the reason for the inclusion of the words ‘for the purpose of securing a cleared area of convenient shape and dimensions,’ which is the first limb of the subsection, the irrelevant limb, was that there was ‘an administrative error,’ a phrase which I find somewhat lacking in precision. I do not really know whether that means that the administrative error consisted in failing to draw attention in the precedent itself to the fact that one of the alternatives should come out, or that it was the person who prepared the ultimate letter and/or Mr Stott who themselves overlooked striking out the alternative, knowing that one of the alternatives should come out. In my judgment it matters not, because, as I have said, I have no power to amend. The next point taken by Mr Woolf was that the letter was ambiguous, because paragraph 4 expressed the inspector’s conclusion, which was adopted by the Secretary of State in paragraph 5 in the alternative. It was thus not clear which set of circumstances had been taken into account, and counsel submitted that as the second limb was at least referred to, I ought to treat the decision as being correct on the basis that the inspector plus the Minister, or at least the Minister, had the right test in mind. I have already expressed my view earlier in this judgment that it seems to me to be quite clear that the ‘convenient shape’ consequence of the purchase of the added land was treated as being the qualifying matter both in limb 1 and limb 2. Finally, Mr Woolf drew my attention to the words of the fourth schedule to the Housing Act 1957, which are basically the words used in section 245 of the Town and Country Planning Act 1971. The words upon which he specifically placed reliance were these, that if any person is aggrieved by an order on the ground that it is not within the powers of the Act, then he may make an application to the High Court, and where any such application is duly made the court–and I now quote–‘may (i) by interim order suspend the operation of the order, or the approval of the plan,’ etc, or ‘(ii) if satisfied upon the hearing of the application that the order, or the approval of the plan, is not within the powers of this Act,’ etc, ‘quash the order.’  Counsel said that those are words which on their face show that it is permissive and not mandatory for me to quash the order. I have had the advantage of reading–in fact I was responsible for asking to see–the judgment of Kerr J given on March 7 1974 in the case of Miller and Others v Weymouth and Melcombe Regis Corporation [(1974) 27 P & CR 468], and in a characteristically full and helpful judgment the learned judge set out in detail his reasons for reaching the conclusion, with which I respectfully agree, that the word ‘may’ in section 245 (4) of the 1971 Act is permissive and provides the court with a discretion. In the course of giving his judgment, he quoted the well-known passage from the judgment of Greene MR in the leading case of R v Stafford Justices [1940] 2 KB 33 at 43, which reads: In my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justitiae to his order. Mr Woolf says that if he is wrong in his submission that there is jurisdiction in this court to hear extrinsic evidence and on the basis of that evidence to amend the letter of the Secretary of State (a submission which perhaps I should add in parentheses is hardly in accord with the concession of his predecessor Mr Slynn in this very case that there was nothing in the nature of the slip rule which would enable the Secretary of State to correct what was really no more than a clerical error), then I should admit the very evidence which I have excluded for the purpose of considering whether I should exercise my discretion and not quash the order. There must be a limit to the forensic gymnastics which are to be imposed upon Her Majesty’s judges, and this seems to me to go beyond the limit. If I do, as I have rightly or wrongly so decided in this case, exclude extrinsic evidence on the basis that I cannot look at that material in order to amend the Minister’s letter, that seems to me to be the end of the matter, that material is not admissible, and the Minister’s decision stands as recorded in that letter. I then have to consider in relation to the exercise of my discretion whether there is disclosed, following the Stafford Justices case, an excess of jurisdiction, in which case in the absence of special circumstances the applicant, the person aggrieved, would be entitled ex debito justitiae to the order being quashed. This is a case where there has been an excess of jurisdiction or a want of jurisdiction. Are there any special circumstances to prevent the usual consequences?  To say that special circumstances exist by reason of the very material which I have held to be inadmissible would be the very negation of my decision that extrinsic evidence cannot be looked at to establish the Secretary of State’s mistake. I think that, although perhaps with undue length, I have covered the various points which have been raised, and the consequence which flows from my judgment is that the order in so far as it relates to Mr Gosling’s property, the two houses 133 and 135, should be quashed; but I will entertain submission and argument if that is not, as it appears to me to be, what should follow. An order was made in the terms contemplated by his Lordship. Mr Gosling was awarded costs against the Secretary of State.